Oliver Masomera (in his capacity as Executor Dative of Estate Late Brian James Rhodes) v Gideon Hwemende and Others

The applicant, purporting to act as executor dative of the Estate of Late Brian James Rhodes, sought rescission of a judgment granted by Tsanga J in HC 1589/13. That judgment concerned US$70,000 held in trust by a law firm (Honey & Blackenberg) representing rental income from two companies (Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd). Tsanga J had ordered that the fourth respondent (Terence Cobden Rhodes), as trustee of Phoenix Trust, was entitled to the funds upon proving that the deceased had transferred the companies' shares to the Trust. The applicant alleged fraud, claiming the deceased never transferred shares to Phoenix Trust and that the fourth respondent misled the court. When filing his founding affidavit, the applicant claimed to be executor dative but attached letters confirming his appointment as curator bonis (dated 1 November 2013). In his answering affidavit, he attached the correct letters of administration appointing him as executor dative (dated 26 February 2014), after Tsanga J's judgment of 20 November 2013.

• Whether the applicant had locus standi to bring the application when he was only appointed curator bonis at the time of the judgment he sought to rescind
• Whether a defect in authority/locus standi shown in a founding affidavit can be cured by producing correct authority in an answering affidavit
• Whether new matter can be introduced in an answering affidavit to establish a cause of action not established in the founding affidavit
• Whether rescission should be granted under Rule 449(1) of the High Court Rules on the basis that the judgment was erroneously granted
• Whether rescission should be granted at common law on the basis of fraud
• What constitutes sufficient cause for rescission of judgment at common law

The application was dismissed with costs to be borne by the Estate of the Late Brian James Rhodes.

A curator bonis lacks locus standi to institute litigation on behalf of an estate - only an executor dative or testamentary has such authority. A defect in locus standi constituting a nullity in a founding affidavit cannot be cured by producing correct letters of authority in an answering affidavit, as this constitutes substitution of a different legal persona rather than ratification of defective authority. In application proceedings, an applicant must establish a cause of action on the founding affidavit and cannot introduce new matter to cure a legal defect through an answering affidavit. Rule 449(1) is designed to correct obviously wrong judgments or errors made by the court itself, not to introduce new issues or retry matters on new evidence. For rescission at common law based on fraud, an applicant must prove fraud with tangible, substantive evidence, not mere allegations or speculation.

The court observed that the applicant appeared to be on a fishing expedition and had filed multiple unsuccessful applications relating to the same estate matters. Chitapi J noted that while he reluctantly concluded the applicant had not acted mala fide, the applicant needed proper legal advice and should introspect before filing further applications, warning that another court might find abuse of process if endless unmerited applications continued. The judge also commented sympathetically that the applicant appeared determined to protect estate interests but was ill-advised and groping in the dark without proper documentation to support his claims. The court declined to award punitive costs on the attorney-client scale despite finding against the applicant on all grounds.

This case is significant for clarifying important principles in Zimbabwean civil procedure: (1) It confirms the limited powers of a curator bonis versus an executor dative in estate administration and litigation; (2) It establishes that defects in locus standi in a founding affidavit cannot be cured by introducing correct authority in an answering affidavit, as this amounts to introducing a new cause of action rather than ratification; (3) It reinforces the principle that an applicant stands or falls on the founding affidavit in application proceedings; (4) It clarifies the interpretation of Rule 449(1) regarding rescission of judgments erroneously granted, emphasizing that the rule is designed to correct errors made by the court itself, not to introduce new issues; (5) It reaffirms the high threshold for rescission at common law, requiring proof of fraud or just cause with tangible evidence, not mere allegations.